State v. Demone Alexander

2013 WI 70

SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP394-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Demone Alexander,
Defendant-Appellant-Petitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 342 Wis. 2d 249, 816 N.W.2d 350
(Ct. App. 2012 – Unpublished)

OPINION FILED: July 12, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 14, 2013

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Carl Ashley

JUSTICES:
CONCURRED: ABRAHAMSON, C.J., concurs. (Opinion filed.)
CROOKS, J., ABRAHAMSON, C.J., BRADLEY concur.
(Opinion filed.)
ZIEGLER, J., concurs. (Opinion filed.)
DISSENTED:
NOT PARTICIPATING:

ATTORNEYS:
For the defendant-appellant-petitioner, there was a brief
by Hans P. Koesser and Koesser Law Office, S.C., Kenosha, with
oral argument by Hans P. Koesser.

For the plaintiff-respondent, the cause was argued by
Thomas Balistreri, assistant attorney general, with whom on the
brief was J.B. Van Hollen, attorney general.
 2013 WI 70
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP394-CR
(L.C. No. 2008CF3168)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent,
FILED
v.
JUL 12, 2013
Demone Alexander,
Diane M. Fremgen
Defendant-Appellant-Petitioner. Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Affirmed.

¶1 MICHAEL J. GABLEMAN, J. We are asked to determine
whether a defendant must be physically present when a judge

holds an in-chambers discussion with a juror during the middle
of a trial. We recognize that a defendant has a constitutional

right to be present at his trial. Kentucky v. Stincer, 482 U.S.
730, 745 (1987). Whether this right to be present at trial

encompasses in-chambers meetings "admits of no categorical 'yes'
or 'no' answer. A conference in chambers might well constitute

part of the trial depending upon what matters are discussed or
passed upon. Likewise, such a conference might not be a part of
 No. 2011AP394-CR

the trial in the sense of one's constitutional right to be

present." Ramer v. State, 40 Wis. 2d 79, 84, 161 N.W.2d 209

(1968) (citation omitted). The test for whether a defendant's

presence is required at an in-chambers hearing, or at a

conference in the courtroom after the judge has emptied it of

spectators, is whether his absence would deny him a fair and

just hearing. Id. at 85.

¶2 The defendant, Demone Alexander, was charged with

first-degree intentional homicide and his case was tried to a

jury.1 During the trial, two jurors at separate times approached

the bailiff to discuss a potential bias issue. One juror stated

that she knew a woman in the courtroom gallery, who turned out

to be the mother of Alexander's child, and another said that he

knew one of the defense's witnesses. To resolve the matter, the

judge held separate in-chambers discussions with both jurors to

determine the extent of the bias. Both of Alexander's attorneys

and the prosecutor were present for these meetings, but

Alexander was not. The court ultimately struck the jurors, over

defense counsel's objections.
¶3 Alexander was convicted and sought postconviction

relief, arguing that he had a constitutional and statutory right
to be present during the in-chambers discussions. He argued the

constitutional right is grounded in the Sixth and Fourteenth
Amendments to the United States Constitution and Article I,

Section 7 of the Wisconsin Constitution. The statutory right,

1
The Honorable Carl Ashley presiding.

2
 No. 2011AP394-CR

he alleged, stemmed from Wis. Stat. § 971.04(1)(c),2 which

provides that "the defendant shall be present . . . [d]uring

voir dire of the trial jury." The circuit court denied the

motion and the court of appeals affirmed.

¶4 We hold that the circuit court's decision to exclude

Alexander from the in-chambers meetings with the jurors did not

deprive Alexander of a fair and just hearing. As the United

States Supreme Court has outlined, the factors a trial court

should consider in determining whether a defendant's presence is

required to ensure a fair and just hearing include whether the

defendant could meaningfully participate, whether he would gain

anything by attending, and whether the presence of the defendant

would be counterproductive. United States v. Gagnon, 470 U.S.

522, 527 (1985) (per curiam). Alexander would not have been

able to contribute anything to the circuit court's inquiry of

the jurors, and may in fact have intimidated them if he had been

present. Additionally, both of Alexander's attorneys were

present at the in-chambers meetings. Alexander's absence thus

did not violate his constitutional right to be present at his

trial.

¶5 We also hold that Alexander's statutory right under

Wis. Stat. § 971.04(1)(c) to be present during voir dire was not

violated. Voir dire is a preliminary examination of whether an

individual can serve on a jury. In this case, the trial had

2
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version.

3
 No. 2011AP394-CR

already commenced and the jurors had already been selected when

the bias issue arose. Section 971.04(1)(c) is thus inapplicable

here. The decision of the court of appeals is affirmed.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶6 Demone Alexander was charged with first-degree

intentional homicide in the shooting death of Kelvin Griffin.

The facts surrounding the shooting are not at issue in this

case. Instead, the questions presented center around the trial

judge's separate in-chambers discussions with members of the

jury, which took place outside Alexander's presence.

Accordingly, we recite only the facts relating to those

discussions.

¶7 Near the end of Alexander's seven-day trial, Juror 10

approached the bailiff and informed him that she knew a woman

who was seated in the gallery. The trial judge then held an on-

the-record meeting in his chambers with the juror. The

prosecutor and both of Alexander's attorneys were present as

well. At the outset of the gathering, the circuit court asked
Alexander's counsel if she would be willing to "waive the

appearance of Mr. Alexander for purposes of this?" The attorney
replied, "We do."3

¶8 The court proceeded to ask the juror how she knew the
woman in the gallery. Juror 10 identified the woman as

"Monique," and said that "[s]he's an old friend of the family.

3
Alexander had two attorneys representing him at his trial.
To avoid unnecessary confusion and for the sake of brevity, we
will refer to them as "counsel" where appropriate.

4
 No. 2011AP394-CR

We grew up together." As Juror 10 further elaborated, Monique

"went to school with my sister . . . . [S]he's really my

sister's friend." However, due to a falling out between Monique

and Juror 10's sister, Juror 10 had not seen Monique in six

months. Finally, Juror 10 stated that she did not know what

Monique's connection to the case was.

¶9 After Juror 10 left chambers, the court was informed

that Monique had a child with Alexander. Counsel for Alexander

argued that this fact was not a problem, as Juror 10 "doesn't

have any idea why Monique is even here. So if she doesn't know

anything about it, there's no relationship and no prejudice and

no bias and no nothing." The prosecutor, though, argued that it

would be "dangerous to keep her on the jury" because she might

discover the connection between Monique and Alexander. The

court then ordered Alexander's attorneys to talk to their client

about his relationship with Monique and his knowledge of Juror

10's connection with Monique. After an off-the-record

discussion with their client, counsel for Alexander confirmed
that Monique "is, in fact, his baby's momma. But he has not

seen her in sixteen months. He's not close to her. [And he]
does not know the juror. He's never seen her before."

¶10 The court put off the decision on whether to remove
Juror 10 and proceeded to address another potential juror bias

issue that arose that day. The defense had just called a
witness named Jesse Sawyer to dispute the statement of one of

the State's witnesses who testified that Alexander gave the

murder weapon to Sawyer to hide. After Sawyer finished his
5
 No. 2011AP394-CR

testimony that day, Juror 33 told the bailiff that he knew

Sawyer. The circuit court, repeating the process it used

earlier, invited the attorneys and Juror 33 into chambers to

inquire on the record as to the juror's relationship with the

witness. Upon inquiry from the court, Juror 33 described his

relationship with Sawyer as one based on a mutual interest in

Harley-Davidson motorcycles. Sawyer does custom work on the

motorcycles, Juror 33 continued, and Juror 33 would "go by his

house because I'm interested in how he does the bikes because I

want to purchase me a Harley-Davidson. I wanted him to do some

work on my bike." Juror 33 further stated that he had known

Sawyer for three years, and had seen him recently at a party and

at a Harley-Davidson event. Juror 33 did not, however, consider

Sawyer a personal friend, but rather an acquaintance he would go

to if he needed work done on his motorcycle.

¶11 Following Juror 33's departure from chambers, the

judge asked each side to state a position on whether he needed

to be removed. Defense counsel argued against removal, while
the prosecutor equivocated: "I'm uncomfortable with any juror

knowing a witness . . . . [B]ut I'm not asking that he be
struck at this time, and I reserve. If we make it to the end

with 14 [jurors], I don't know what I would do at that point."4
The court then decided it would wait until the conclusion of

4
Fourteen jurors were selected so that two could be
designated as alternates. If at the end of the trial all 14
jurors still remained, the circuit court planned to randomly
pick two to be removed before deliberations.

6
 No. 2011AP394-CR

Alexander's trial to determine whether it had to remove either

juror.

¶12 After a weekend break, the trial resumed for closing

arguments. That morning, however, Juror 10 called another juror

to report that she would not be able to make it to court that

day because her boyfriend had been in a car accident. Juror 10

subsequently arrived, and the judge decided to conduct another

in-chambers discussion with her to ask her about the car

accident and to further inquire into any potential bias

resulting from her relationship with Monique. Once again the

lawyers——but not Alexander——were present.

¶13 When asked by the court whether she could be impartial

in light of her relationship with Monique, Juror 10 replied, "I

definitely can . . . . I don't talk to her at all. It doesn't

bother me. I'll be able to go ahead and directly have my own

decision." The prosecutor asked her why she reported her

relationship with Monique to the bailiff and Juror 10 replied,

"I felt it was very important because I didn't know if she was
going to try to retaliate and try to contact me and ask me about

some things [about the case] or not." And in response to
further questions from the prosecutor, Juror 10 said she thought

Monique was somehow connected to Alexander's murder trial.
¶14 The circuit court, pointing to Juror 10's concern that

Monique might "retaliate" against her, struck her from the jury.
Defense counsel noted her objection on the record, and the

discussion moved to Juror 33. The State requested removal and

Alexander's attorney objected, stating that "I don't think
7
 No. 2011AP394-CR

there's any basis on this record for him to be struck for

cause." The court sided with the prosecution and removed Juror

33 for cause based on his relationship with the defense's

witness.

¶15 Alexander was found guilty of first-degree intentional

homicide and possession of a firearm by a felon. He

subsequently filed a motion for postconviction relief, arguing

that he had a constitutional and statutory right to be present

when the court questioned Jurors 10 and 33.5 According to the

motion, the circuit court's in-chambers discussions with the

jurors violated his due-process rights and his right to a fair

and impartial jury. See U.S. Const. amends. VI, and XIV, § 1;

Wis. Const. art. I, § 7. As for the statutory violation,

Alexander pointed to Wis. Stat. § 971.04(1)(c), which provides

that "the defendant shall be present . . . [d]uring voir dire of

the trial jury." The circuit court denied the motion, reasoning

that because the in-chambers conversations were not part of the

jury-selection process, Alexander's constitutional and statutory

rights were not violated.

¶16 Alexander appealed and the court of appeals affirmed

in an unpublished opinion. State v. Alexander, No. 2011AP394-

CR, unpublished slip. op. (Wis. Ct. App. May 8, 2012). The

court of appeals concluded that because the in-chambers meetings

with the jurors occurred after voir dire, they were permissible,

5
Alexander raised other issues which are not germane to
this appeal.

8
 No. 2011AP394-CR

for Alexander's attorney "was entitled to make the strategic

decision to waive Alexander's presence at the in-chambers

meetings with the jurors." Id., ¶17 (citation omitted).

¶17 We granted Alexander's petition for review and now

affirm his conviction, although on different grounds than the

court of appeals.

II. STANDARD OF REVIEW

¶18 This case requires us to determine whether Alexander

had a constitutional or statutory right to be present during the

court's in-chambers discussions with the two jurors. The

interpretation and application of constitutional and statutory

provisions are questions of law that we review de novo. State
v. Hamdan, 2003 WI 113, ¶19, 264 Wis. 2d 433, 665 N.W.2d 785.

III. DISCUSSION

¶19 We conclude that on the facts of this case, Alexander

was not denied a fair and just hearing by virtue of his absence

from the circuit court's separate in-chambers discussions with

two jurors. Moreover, we hold that Alexander did not have a

statutory right to attend the discussions under Wis. Stat.

§ 971.04(1)(c) because removal of the jurors did not occur

during voir dire.

A. Alexander's Absence From the In-Chambers Hearings Did

Not Violate His Constitutional Right to be Present at Trial

1. Applicable Constitutional Provisions

¶20 Both the United States and Wisconsin Constitutions

contain a right to due process. The Fourteenth Amendment to the

United States Constitution prevents a state from depriving "any
9
 No. 2011AP394-CR

person of life, liberty, or property, without due process of

law," while Article I, Section 8 of the Wisconsin Constitution

reads: "No person may be held to answer for a criminal offense

without due process of law . . . ." Due process guarantees a

defendant "the right to be present at any stage of the criminal

proceeding that is critical to its outcome if his presence would

contribute to the fairness of the procedure."6 Stincer, 482 U.S.

at 745.

¶21 A criminal defendant's right to an impartial jury, on

the other hand, flows from the Sixth Amendment to the U.S.

Constitution and Article I, Section 7 of the Wisconsin

Constitution. State v. Mendoza, 227 Wis. 2d 838, 847, 596
N.W.2d 736 (1999). The Sixth Amendment, in relevant part,

states: "In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed . . . ." Similarly, Article I, Section 7 of the

Wisconsin Constitution provides: "In all criminal prosecutions

the accused shall enjoy the right . . . in prosecutions by

indictment, or information, to a speedy public trial by an

impartial jury of the county or district wherein the offense

6
A defendant's right to be present at his trial is also
rooted in the Sixth Amendment's Confrontation Clause. United
States v. Gagnon, 470 U.S. 522, 526 (1985) (per curiam). But in
a situation (such as the one at issue in this case) where the
defendant is not confronting witnesses or evidence against him,
the right is located in the Due Process Clause of the Fourteenth
Amendment. Kentucky v. Stincer, 482 U.S. 730, 745 (1987);
United States v. McCoy, 8 F.3d 495, 496 (7th Cir. 1993).

10
 No. 2011AP394-CR

shall have been committed . . . ." When "the language of [a]

provision in the state constitution is virtually identical to

that of the federal provision or where no difference in intent

is discernible, Wisconsin courts have normally construed the

state constitution consistent with the United States Supreme

Court's construction of the federal constitution." State v.

Agnello, 226 Wis. 2d 164, 180, 593 N.W.2d 427 (1999) (internal

quotation marks and citations omitted); see also State v.

Schaefer, 2008 WI 25, ¶62, 308 Wis. 2d 279, 746 N.W.2d 457

(determining that the compulsory-process clauses in the Sixth

Amendment and Article I, Section 7 of the Wisconsin Constitution

are cognate provisions). Wisconsin courts may also look for

guidance from lower federal courts in interpreting cognate

constitutional provisions.7 See Rao v. WMA Secs., Inc., 2008 WI

73, ¶¶47-50, 310 Wis. 2d 623, 752 N.W.2d 220.

2. Alexander's Right to be Present at Trial Was Not

Violated

¶22 An accused has a constitutional right "to be present

during his trial, and his right to be present at the trial

includes the right to be present at proceedings before trial at

7
"Cognate provision" refers to the parts of a state
constitution that are modeled on the federal Bill of Rights.
Stanley E. Adelman, Towards an Independent State Constitutional
Jurisprudence or How to Disagree with the Supreme Court and How
Not To, 2002 Ark. L. Notes 1, 1 ("State constitutions typically
contain 'cognate' provisions which are based on and worded
similarly, if not identically, to the various guarantees of
liberty contained in the Bill of Rights of the United States
Constitution.") (footnote omitted).

11
 No. 2011AP394-CR

which important steps in a criminal prosecution are often

taken." Leroux v. State, 58 Wis. 2d 671, 689, 207 N.W.2d 589

(1973) (emphasis added) (citation omitted). As for conferences

during the trial, we have "recommended" that these "rarely" be

held without the defendant present. Id. at 690 (internal

quotation marks and citation omitted). "However, the presence

of [a] defendant is constitutionally required only to the extent

a fair and just hearing would be thwarted by his absence. . . .

The constitution does not assure 'the privilege of presence when

presence would be useless, or the benefit but a shadow.'" Id.
(quoting Snyder v. Massachusetts, 291 U.S. 97, 106-07 (1934)),

overruled on other grounds by Malloy v. Hogan, 378 U.S. 1

(1964)). Furthermore, "whether the defendant has a right to

attend a conference in chambers . . . admits of no categorical

'yes' or 'no' answer. A conference in chambers might well

constitute part of the trial depending upon what matters are

discussed or passed upon. Likewise, such a conference might not

be part of the trial in the sense of one's constitutional right

to be present." Ramer, 40 Wis. 2d at 84.

¶23 We acknowledge that some of the language in our case

law has been in tension with the concept that a defendant does

not have an absolute constitutional right to attend every in-

chambers conference. For example, in State v. Burton, 112 Wis.

2d 560, 563, 334 N.W.2d 263 (1983), the circuit court

communicated twice with the jury——outside the presence of either

the prosecutor or defense counsel——during deliberations. Id.

The discussions concerned the process for turning over the
12
 No. 2011AP394-CR

sealed verdict to the court as well as scheduling dinner and

hotel arrangements in the event the jury could not reach a

verdict by the end of the day. Id. at 563-64. We held that

"communication between a judge and a jury, while the jury is

deliberating, outside the courtroom and outside the presence of

the defendant and defense counsel constitutes constitutional

error, if the defendant has not waived the constitutional right

to be present." Id. at 570.

¶24 This holding, however, was in direct contradiction to

our decision just three years earlier in May v. State, 97 Wis.

2d 175, 293 N.W.2d 478 (1980). In that case, during

deliberations the jury asked the circuit court the following

question related to the charged offense of delivering a

controlled substance as a party to a crime: "'By withdrawing

from a conspiracy has a person removed themselves (sic) from

aiding and abetting the commission of a crime?'" Id. at 180

(quoting the jury note) ("sic" in original). The court answered

the question "no," without informing the defendant or his

attorney. Id. Two issues related to this incident were raised

on appeal: (1) did the circuit court err in answering the

question in the absence of counsel?; and (2) did the circuit

court err in answering the question in the absence of the

defendant? Id. As to the first question, we held that because

"there was no waiver in this case, counsel should have been

given the opportunity to confer with the court about the

appropriate response to be given to the jury's question. It was

error for the trial court to answer the question without
13
 No. 2011AP394-CR

notifying counsel." Id. at 183-84. On the second question,

however, we held that, "[a] fair and just trial was not thwarted

by the court's answering that question outside the defendant's

presence. The question posed by the jury dealt with a question

of law and the trial court answered it correctly." Id. at 186.

Additionally, "[n]othing transpired which was prejudicial or

harmful to the defendant's cause, especially in view of the fact

that the trial court subsequently reread to the jury the

instructions concerning party to a crime." Id. All that due
process and Wis. Stat. § 971.04 required was that the

defendant's attorney be present. Id. at 185-88.

¶25 As Burton and May are in conflict, we must overrule

one of them. We now hold that May is more soundly reasoned and

more consistent with the precedent of this court and that of the

U.S. Supreme Court. As we have stated, "the presence of [a]

defendant is constitutionally required only to the extent a fair

and just hearing would be thwarted by his absence . . . . The

constitution does not assure 'the privilege of presence when

presence would be useless, or the benefit but a shadow.'"

Leroux, 58 Wis. 2d at 690 (quoting Snyder, 291 U.S. at 106-07).

Adopting a requirement that a defendant must always be present

whenever a court speaks with members of the jury would render

the above-quoted language from Leroux meaningless. More

importantly, it would impose an unreasonable and unnecessary

burden upon trial judges, who would be forced to ensure the

presence of defendants at meetings where they had nothing to

contribute to their own cause, and where their presence could in
14
 No. 2011AP394-CR

fact be highly counterproductive. The Constitution does not

require criminal proceedings to be undermined so significantly

in this way, and for so little benefit to the defendant. That

is why our better-reasoned case law provides that whether a

defendant must be present when a court meets with members of the

jury "admits of no categorical 'yes' or 'no' answer." Ramer, 40

Wis. 2d at 84. All that is required when the court communicates

with members of the jury is that the defendant's attorney be

present. See May, 97 Wis. 2d at 183-84.

¶26 Our carelessness in Burton also led this court astray

in State v. Anderson, 2006 WI 77, 291 Wis. 2d 673, 717 N.W.2d

74, a case Alexander relies on heavily. In that case, the issue

once again was the propriety of "the circuit court's ex parte

communications with the jury during deliberations outside the

presence of the defendant and without notice to or consultation

with the defendant." Id., ¶23. We began our analysis on this

issue by quoting the U.S. Supreme Court edict that "[o]ne of the

most basic of the rights guaranteed by the Confrontation Clause

is the accused's right to be present in the courtroom at every

stage of his trial." Id., ¶39 (quoting Illinois v. Allen, 397

U.S. 337, 338 (1970) (alteration in original)). The

Confrontation Clause, however, does not apply when the defendant

is not confronting witnesses or evidence against him. United

States v. McCoy, 8 F.3d 495, 496 (7th Cir. 1993). As Anderson

centered on the defendant's right to be present when the trial

court spoke with the jury during deliberations, its reliance

upon a Confrontation Clause case was incorrect.
15
 No. 2011AP394-CR

¶27 We then moved to a discussion of Burton and Williams

v. State, 40 Wis. 2d 154, 161 N.W.2d 218 (1968), and concluded

that "an accused has a right to be present whenever any

substantive step is taken in the case." Anderson, 291 Wis. 2d

673, ¶42 (emphasis added). This court never defined

"substantive step," but nonetheless concluded——ipse dixit——that

"[a] substantive step in a trial for which an accused has a

right to be present includes the circuit court's communications

with the jury during deliberations." Id., ¶43 (footnote
omitted). For support of this statement we cited to Burton and

a slew of court of appeals cases relying on that decision.

Anderson, 291 Wis. 2d 673, ¶43 n.20. At the end of that string

cite, though, we tacitly acknowledged but did not confront the

fact that May and Burton conflicted. Anderson, 291 Wis. 2d 673,

¶43 n.20.

¶28 What is more, Anderson never cited to Leroux, nor

Ramer, which made clear that a defendant has a due-process right

to be present at an in-chambers meeting only if his absence

would deny him a "fair and just hearing." See Leroux, 58 Wis.

2d at 690; Ramer, 40 Wis. 2d at 85. With a sleight of its hand,

Anderson changed what should have been a fact-specific due-

process inquiry (did the communication between the judge and

jury deny the defendant a fair and just hearing?) into an

absolute Confrontation Clause right to be present whenever the

trial court speaks with members of the jury. We thus withdraw

all language from Anderson intimating such a right. See 291

Wis. 2d 673, ¶¶35-44.
16
 No. 2011AP394-CR

¶29 Federal case law also supports our conclusion that

Burton and Anderson are outliers. The U.S. Supreme Court has

said that the "mere occurrence of an ex parte conversation

between a trial judge and a juror does not constitute a

deprivation of any constitutional right. The defense has no

constitutional right to be present at every interaction between

a judge and juror, nor is there a constitutional right to have a

court reporter transcribe every such communication." Gagnon,

470 U.S. at 526 (internal quotation marks and citation omitted).

And in a case where the defendants were excluded from a

conference concerning whether to dismiss a group of jurors, the

United States Court of Appeals for the Third Circuit put it

persuasively and succinctly: "It is clear that there is no

constitutional right for a defendant to be present at a

conference in chambers concerning dismissal of a juror." United

States v. Provenzano, 620 F.2d 985, 997-98 (3d Cir. 1980); see

also McCoy, 8 F.3d at 497. All that the Constitution requires

at such a conference is the presence of defense counsel. See

Ellis v. Oklahoma, 430 F.2d 1352, 1355 (10th Cir. 1970).

3. Alexander Received a Fair and Just Hearing

¶30 While Alexander had no automatic constitutional right

to be present during the circuit court's in-chambers discussions

with Jurors 10 and 33, his presence was required "to the extent

a fair and just hearing would be thwarted by his absence."

Leroux, 58 Wis. 2d at 690 (citation omitted). Factors a trial

court may consider in determining whether a defendant's presence

is required at an in-chambers conference with a juror to ensure
17
 No. 2011AP394-CR

a "fair and just hearing" include whether the defendant could

meaningfully participate, whether he would gain anything by

attending, and whether the presence of the defendant would be

counterproductive.8 See Gagnon, 470 U.S. at 527. In a situation

such as the present case, where a judge is conducting an in-

chambers meeting to determine whether a juror is biased based on

an account of the juror's connection to the case, the presence

of the defendant would in no way help to resolve the issue and

may actually hinder the proceeding. There was presumably

nothing Alexander could have contributed on either the subject

of Juror 10's relationship with Monique or Juror 33's

association with Sawyer, as Alexander has never alleged that he

was aware of these connections. In fact, both jurors may very

well have been intimidated and deterred from speaking

forthrightly about their potential bias with Alexander seated

only a few feet away. Cf. United States v. Bertoli, 40 F.3d
1384, 1397 (3d Cir. 1994) ("[W]e doubt whether the jurors would

have been as comfortable discussing their conduct [in chambers]

had [the defendant] been present.") (footnote omitted). This

concern is particularly acute in Juror 10's case, as she was

explicitly afraid of "retaliation" from a woman who turned out

to be the mother of Alexander's child. Additionally,

Alexander's attorneys were permitted to leave chambers to speak

with him whenever they needed his input. Alexander was thus not

8
This list is not exhaustive, as future cases will present
circuit courts with facts that cannot be anticipated.

18
 No. 2011AP394-CR

denied a "fair and just hearing" by virtue of his absence from

the judge's chambers.9

B. Wis. Stat. § 971.04(1)(c) Does Not Apply

¶31 Alexander also asserts that he had a right to be

present at the in-chambers meetings based on Wis. Stat.

§ 971.04(1)(c), which mandates that a defendant "be

present . . . [d]uring voir dire of the trial jury." "Voir

dire" is not defined in the statute, but Black's Law Dictionary

defines it as "[a] preliminary examination of a prospective

juror by a judge or lawyer to decide whether the prospect is

qualified and suitable to serve on a jury." 1710 (9th ed. 2009)

(emphasis added). Other sources define it similarly. See James

H. Gold, Voir Dire: Questioning Prospective Jurors on Their

Willingness to Follow the Law, 60 Ind. L.J. 163, 163 (1985)

("During the pre-trial jury selection process known as voir

dire, criminal defendants often seek to question prospective

jurors as to their willingness and ability to follow specific

rules of law.") (footnote omitted); Robert E. Larsen, Navigating

the Federal Trial, § 4:1 (2012 ed.) ("Voir dire is a preliminary

9
Rather than grappling with any of the factors articulated
by the Supreme Court in United States v. Gagnon, 470 U.S. 522,
527 (1985) (per curiam) to determine whether Alexander was
denied a fair and just hearing, Justice Crooks nakedly asserts
that "Alexander's presence at these conferences was critical to
the fairness of the proceedings." Justice Crooks's concurrence,
¶71. Justice Crooks does not answer what Alexander could have
contributed to the in-chambers conferences, nor does he address
the threat that would have been posed to the jurors' candor had
they been forced to discuss their potential bias issues with an
accused murderer seated a few feet away. See Gagnon, 470 U.S.
at 527.

19
 No. 2011AP394-CR

examination of potential jurors by a judge or lawyer to

determine whether the prospect is qualified and suitable to

serve on a jury."). Here, the examination of Jurors 10 and 33

occurred during the trial and after both had been selected as

jurors. The in-chambers hearings were thus not part of voir

dire. The court of appeals cases relied on by Alexander

supporting the proposition that a defendant has a right to be

present during in-chambers voir dire are as a result inapposite.

See State v. David J.K., 190 Wis. 2d 726, 735-36, 528 N.W.2d 434
(Ct. App. 1994) (holding that the defendant had a constitutional

and statutory right to be present when the circuit court

privately questioned three jurors in chambers during the middle

of voir dire); see also State v. Tulley, 2001 WI App 236, ¶¶6,

10, 248 Wis. 2d 505, 635 N.W.2d 807 (reaffirming David J.K.).10

10
Wisconsin Stat. § 971.04(1)(b) protects a defendant's
right to be present "[a]t trial." Justice Crooks contends that
Alexander had a right to attend the in-chambers discussions
pursuant to that provision. Justice Crooks's concurrence, ¶58.
However, Alexander did not make that argument before this court.
We therefore do not address the question. See State v. Johnson,
153 Wis. 2d 121, 124, 449 N.W.2d 845 (1990) ("This court will
not consider the issues respondent wishes to have considered
unless they are asserted in the brief and fully discussed in
that brief to this court.").

20
 No. 2011AP394-CR

IV. CONCLUSION

¶32 We hold that the circuit court's decision to exclude

Alexander from the in-chambers meetings with the jurors did not

deprive Alexander of a fair and just hearing. Alexander would

not have been able to contribute anything to the circuit court's

inquiry of the jurors, and may in fact have intimidated them if

he had been present. Additionally, both of Alexander's

attorneys were present at the in-chambers meetings. Alexander's

absence thus did not violate his constitutional right to be

present at his trial.

Nonetheless, Justice Crooks considers the issue
sufficiently pled because Alexander's brief here cites to State
v. Anderson, 2006 WI 77, 291 Wis. 2d 673, 717 N.W.2d 74, and
"Anderson considers both a defendant's statutory and
constitutional right to be present 'at trial.'" Justice
Crooks's concurrence, ¶47. True enough. But Anderson also
considered "whether the circuit court committed error by failing
to make a record of or preserve a record of its statements or
comments to the jury relating to the case" under Wis. Stat.
§ 805.13, 291 Wis. 2d 673, ¶¶77-78, and "whether the circuit
court erred by refusing the jury's requests to have the
defendant's and the victim's in-court testimony read to it while
allowing the jury during deliberations to see and hear the
victim's videotaped interview." Id., ¶82. Alexander cited 21
other cases in the same brief, each of which presented separate
issues. It would be aberrant indeed to consider an issue raised
because a case cited in a litigant's brief mentioned the
particular issue. Appellate courts have higher pleading
standards than this. See United States v. Zannino, 895 F.2d 1,
17 (1st Cir. 1990) ("It is not enough merely to mention a
possible argument in the most skeletal way, leaving the court to
do counsel's work, create the ossature for the argument, and put
flesh on its bones."); Rivera-Gomez v. de Castro, 843 F.2d 631,
635 (1st Cir. 1988) ("Judges are not expected to be mindreaders.
Consequently, a litigant has an obligation to spell out its
arguments squarely and distinctly . . . , or else forever hold
its peace.") (internal quotation marks and citation omitted).

21
 No. 2011AP394-CR

¶33 We also hold that Alexander's statutory right under

Wis. Stat. § 971.04(1)(c) to be present during voir dire was not

violated. Voir dire is a preliminary examination of whether an

individual can serve on a jury. In this case, the trial had

already commenced and the jurors had already been selected when

the bias issue arose. Section 971.04(1)(c) is thus inapplicable

here.

By the Court.—The decision of the court of appeals is

affirmed.

22
 No. 2011AP394-CR.ssa

¶34 SHIRLEY S. ABRAHAMSON, C.J. (concurring). I agree

with and join Justice Crooks' concurrence.

¶35 I write separately to address the majority opinion's

misreading of Wis. Stat. § (Rule) 971.04(1)(c), majority op.,

¶¶5, 19, 38, 40, and to explain that Wis. Stat. § (Rule)

971.04(1)(c) has to be read to give a defendant the right to be

present "when the jury is being selected." Here is why.

¶36 Wisconsin Stat. § 971.04(1)(c) was created by the

legislature.1 When created, Wis. Stat. § 971.04(1)(c) read as

follows:

971.04 Defendant to be present. (1) Except as provided
in subs. (2) and (3), the defendant shall be present:

. . . .

(c) At all proceedings when the jury is being selected
(emphasis added).
¶37 In 1997, in the exercise of its rule-making powers and

at the request of the Judicial Council, the Supreme Court (by

Supreme Court Order 96-08, eff. July 1, 1997) adopted numerous

provisions relating to juror use and management and amended the

legislatively created Wis. Stat. § (Rule) 971.04(1)(c) to read

as follows:

971.04 Defendant to be present. (1) Except as provided
in subs. (2) and (3), the defendant shall be present:

. . . .

(c) During voir dire of the trial jury (emphasis
added).

1
§ 63, ch. 255, Laws of 1969 (eff. July 1, 1970).

1
 No. 2011AP394-CR.ssa

¶38 As a result of the Supreme Court's amendment of Wis.

Stat. § 971.04(1)(c), a defendant's right to be present is

stated in terms of "voir dire" instead of "when the jury is

being selected." "Voir dire" ordinarily refers to the selection

of jurors before trial. If the term "voir dire" is given this

limited meaning, the Court's change of the legislative language

curtailed the defendant's legislatively granted right to be

present at all proceedings when the jury is being selected.

¶39 Such a curtailment of a defendant's legislatively

granted right arguably exceeds the Court's powers. The Supreme

Court may not promulgate rules that "abridge, enlarge or modify

the substantive rights of any litigant." Wis. Stat.

§ 751.12(1).

¶40 Furthermore, it is obvious that the Court did not

intend the rule to modify a defendant's substantive rights.2 In

changing the language of Wis. Stat. § 971.04(1)(c), the court

did not have in mind a proceeding in which a challenge is made

to a juror mid-trial, as in the present case; such a challenge

is not a usual occurrence.

¶41 That the Supreme Court (and the Judicial Council,

which petitioned for the change) did not mean to limit a

defendant's rights is clearly evidenced in the Judicial Council

Note appended to Supreme Court Order 96-08.

2
The court of appeals stated that it "perceive[d] no
substantive change in the statute" as a result of the rule
modification. State v. Harris, 229 Wis. 2d 832, 839 n.3, 601
N.W.2d 682 (Ct. App. 1999).

2
 No. 2011AP394-CR.ssa

¶42 The Judicial Council's proposed change in the language

of Wis. Stat. § 971.04(1)(c) explains that the change was meant

to clarify that a defendant has a right to be present only when

"the jurors themselves were present" and not during the initial

selection of names from lists, which ordinarily occurs before
3
the defendant is charged or the trial jury is selected.

¶43 In light of the legislatively created right of a

defendant to be present at all proceedings when the jury is

being selected and the reason proffered by the Judicial Council

for the change of language in Wis. Stat. § 971.04(1)(c) proposed

to the Court, I conclude that the language of Wis. Stat.

§ (Rule) 971.04(1)(c) (incorporating the Supreme Court rule) has

to be interpreted to have the same meaning as the legislatively

created right of a defendant to be present at all proceedings

when the jury is being selected.

¶44 In-chambers proceedings with jurors present to

determine which jurors will continue to serve on the jury, like

the one in the instant case, are proceedings during which the

jury is being selected; in my opinion, the defendant had a

statutory right to be present.

3
Judicial Council Note, 1996, Wis. Stat. § 971.04:

This statute [sub. (1)(c)] defines the proceedings at
which a criminal defendant has the right to be
present. The prior statute's [sub. (1)(c)] reference
to "all proceedings when the jury is being selected"
was probably intended to include only those at which
the jurors themselves were present, not the selection
of names from lists which occurs at several stages
before the defendant is charged or the trial jury
picked.

3
 No. 2011AP394-CR.ssa

¶45 With this explication of Wis. Stat. § (Rule)

971.04(1)(c), I join Justice Crooks' concurring opinion.4

4
I concur in the mandate because here the defendant chose
to waive his right (through counsel and his own actions) to be
present when the jury was being selected during trial. Wis.
Stat. § 971.04(3). The instant case does not present the
situation in which a defendant voluntarily absents himself
during jury selection before trial. For a discussion of this
issue that is not presented in the instant case, see State v.
Koopmans, 210 Wis. 2d 670, 678-79, 563 N.W.2d 528 (1997); State
v. Harris, 229 Wis. 2d 832, 601 N.W.2d 682 (Ct. App. 1999);
State v. Dwyer, 181 Wis. 2d 826, 512 N.W.2d 233 (Ct. App. 1994).

4
 No. 2011AP394-CR.npc

¶46 N. PATRICK CROOKS, J. (concurring). Alexander had

both a statutory and a constitutional right to be present at

each of the in-chambers conferences that occurred with sitting

jurors during his trial for the purpose of determining the

composition of the jury. His rights were waived for him by his

counsel and by his own actions in voluntarily absenting himself.

The Wisconsin legislature gave him the statutory right to be

present "at trial,"1 and the in-chambers conferences in question

clearly occurred "at trial." Additionally, Alexander had a

constitutional right of due process to be present at the in-

chambers conferences because the circumstances of this case put

it into the category of cases where "a fair and just hearing

would be thwarted by his absence."2

¶47 I write separately to address a statutory requirement

that entitles a defendant to be present in a judge's chambers

when the judge communicates with members of the jury where, as

in this case, that communication is part of a determination of

which jurors will continue to serve on the jury. It would seem

disingenuous for the court not to consider Wis. Stat.

§ 971.04(1)(b) when discussing whether Alexander has a statutory

right to be present at the in-chambers conferences at issue

1
Wis. Stat. § 971.04(1)(b). All citations to the Wisconsin
Statutes reference the 2011-2012 version.
2
Snyder v. Massachusetts, 291 U.S. 97, 108 (1934),
overruled on other grounds by Malloy v. Hogan, 378 U.S. 1
(1964).

1
 No. 2011AP394-CR.npc

under Section 971.04. Counsel for Alexander relied on State v.

Anderson, 2006 WI 77, 291 Wis. 2d 673, 717 N.W.2d 74, in both

his brief and at oral argument. Anderson considers both a

defendant's statutory and constitutional right to be present "at

trial."

¶48 The statute at issue today is not complicated; it

simply provides a defendant with the right to be present at

trial. In fact, the State agreed that the in-chambers

discussions in question happened "at trial." The definition of

what constitutes "at trial" is settled and uncontroversial, and

it certainly encompasses the in-chambers conferences at issue in

this case.

¶49 The majority errs in concluding that Alexander had no

constitutional right to be present at the in-chambers

conferences at issue. In doing so, it abandons principles

articulated in State v. Anderson,3 which is a longstanding, well-

reasoned precedent from this court. An in-chambers conference

that deals with the ability of sworn jurors to continue to serve
on the jury is an exceedingly important occurrence in a criminal

trial, and a defendant's absence from it could frustrate his or

her ability to have a fair and just hearing. Therefore, I would

hold that Alexander had a constitutional due process right to be

present at the in-chambers conferences at issue.

¶50 Even though Alexander had both a statutory and

constitutional right to be present at all of the in-chambers

3
State v. Anderson, 2006 WI 77, 291 Wis. 2d 673, 717 N.W.2d
74.

2
 No. 2011AP394-CR.npc

discussions concerning an individual juror's ability to remain

on the jury, he chose to waive those rights through counsel and

through his own actions. Therefore, the court of appeals

correctly denied Alexander's motion for a new trial, and I

respectfully concur.

I. ALEXANDER'S STATUTORY RIGHT

¶51 Wisconsin Stat. § 971.04 provides a defendant the

right to be present during certain enumerated proceedings, at

trial, and at sentencing.4 This statutory right clearly includes

a right to be present at trial and at voir dire.

4
Wis. Stat. § 971.04 provides:

(1) Except as provided in subs. (2) and (3), the defendant
shall be present:

(a) At the arraignment;

(b) At trial;

(c) During voir dire of the trial jury;

(d) At any evidentiary hearing;

(e) At any view by the jury;

(f) When the jury returns its verdict;

(g) At the pronouncement of judgment and the imposition of
sentence;

(h) At any other proceeding when ordered by the court.

(2) A defendant charged with a misdemeanor may authorize
his or her attorney in writing to act on his or her behalf in
any manner, with leave of the court, and be excused from
attendance at any or all proceedings.

3
 No. 2011AP394-CR.npc

¶52 We have interpreted the language in Wis. Stat.

§ 971.04 and explicitly held that the statute provides a

defendant with enumerated statutory rights and further explains

when a defendant may voluntarily absent himself or herself.

State v. Koopmans, 210 Wis. 2d 670, 679, 563 N.W.2d 528 (1997).

In Koopmans, the court concluded that the use of "shall" in the

statutory language means "mandatory" unless one of the statutory

exceptions found in Section 971.04(2)-(3) applies.5 In other

(3) If the defendant is present at the beginning of the
trial and thereafter, during the progress of the trial or before
the verdict of the jury has been returned into court,
voluntarily absents himself or herself from the presence of the
court without leave of the court, the trial or return of verdict
of the jury in the case shall not thereby be postponed or
delayed, but the trial or submission of said case to the jury
for verdict and the return of verdict thereon, if required,
shall proceed in all respects as though the defendant were
present in court at all times. A defendant need not be present
at the pronouncement or entry of an order granting or denying
relief under s. 974.02, 974.06, or 974.07. If the defendant is
not present, the time for appeal from any order under ss.
974.02, 974.06, and 974.07 shall commence after a copy has been
served upon the attorney representing the defendant, or upon the
defendant if he or she appeared without counsel. Service of such
an order shall be complete upon mailing. A defendant appearing
without counsel shall supply the court with his or her current
mailing address. If the defendant fails to supply the court with
a current and accurate mailing address, failure to receive a
copy of the order granting or denying relief shall not be a
ground for tolling the time in which an appeal must be taken.
5
Wisconsin Stat. § 971.04(2) provides an exception for
misdemeanor charges and is inapplicable to this case.

4
 No. 2011AP394-CR.npc

words, the use of "shall" in Section 971.04 conveys a right to a

defendant to be present at his or her trial.6

¶53 As the majority opinion outlines, the circuit judge

met with two sitting jurors separately and in chambers toward

the end of Alexander's trial. All of these conferences took

place in the presence of the Assistant District Attorney and

defense counsel, but Alexander was not present for any of the

conferences. In the first in-chambers conference, the circuit

judge questioned Juror 10 about her relationship with a woman

that the juror had recognized in the courtroom's gallery. The

second in-chambers conference involved Juror 33. After

observing a particular witness's testimony, this juror indicated

that he and the witness were acquainted. In a third in-chambers

conference, the court posed additional questions to juror 10

regarding her relationship with the woman she knew who had been

observing the trial. All three of the conferences occurred

after the jury had been sworn and, in fact, dealt with questions

surrounding whether the two particular sitting jurors could

continue their jury service.

¶54 The separate in-chambers conferences with two sitting

jurors at issue today certainly took place during Alexander's

trial. We have previously defined the meaning of trial for the

purposes of Wis. Stat. § 971.04(1)(b). State v. Anderson, 2006

6
Whether Alexander waived his right to be present at trial
ultimately depends on whether he “voluntarily absent[ed]
himself” from his trial as permitted by Wis. Stat. § 971.04(3).
I am satisfied that Alexander did, in fact, voluntarily absent
himself from the in-chambers conferences at issue here.

5
 No. 2011AP394-CR.npc

WI 77, ¶42, 291 Wis. 2d 673, 717 N.W.2d 74. In Anderson, the

court defined trial as beginning with "the commencement of jury

selection" and going "through the final discharge of the jury

and at any time an action is taken affecting the accused." Id.

(citing Williams v. State, 40 Wis. 2d 154, 160, 161 N.W.2d 218

(1968)); see also State v. Miller, 197 Wis. 2d 518, 521-22, 541

N.W.2d 153 (Ct. App. 1995) ("[I]n a jury trial, 'the beginning

of the trial' occurs when jeopardy attaches; i.e., 'when the

selection of the jury has been completed and the jury sworn.'")

and Wis. Stat. § 972.07(2) (explaining that jeopardy attaches

"when the selection of the jury has been completed and the jury

sworn"). These definitions vary slightly, but both clearly

comport with the common understanding of the meaning of a trial.

In addition, both definitions squarely place the in-chambers

conferences at issue, which occurred after the jury had been

sworn in and before the jury had been discharged, as occurring

during Alexander's trial. Furthermore, the State's brief agreed

that the in-chambers conferences at issue occurred "at trial"

within the meaning of Section 971.04(1)(b).

¶55 We have never held that Wis. Stat. § 971.04(1)(b) does

not or cannot encompass circumstances where a circuit court

communicates with individual members of the jury for purposes of

determining whether these individual jurors will remain on the

jury. In May v. State, 97 Wis. 2d 175, 293 N.W.2d 478 (1980),

this court considered whether Section 971.04 requires a

defendant's presence for the court to respond to questions posed

by a deliberating jury. The jury's question concerned the

6
 No. 2011AP394-CR.npc

"withdrawing from a conspiracy." Id. at 180. May held that

"the communication between the judge and jury related to a

question of law, and therefore the defendant's absence at the

time of the communication did not result in a non-compliance

with the provisions of sec. 971.04." Id. at 188.

¶56 The holding in May simply provides that a defendant's

statutory right to be present during trial does not extend to

communications between a judge and juror or jury when that

communication relates to a pure question of law submitted to the

court by a deliberating jury, and thus May is inapplicable to

this case. Here, the in-chambers conferences that occurred

between the circuit judge and the individual jurors did not

relate to a pure question of law. While the in-chambers

conferences at issue in this case could be viewed as presenting

a mixed question of law and fact to the circuit judge, the

conferences did not concern a pure question of law and did not

originate from the deliberating jury. Therefore, May is clearly

not controlling in this case.
¶57 The facts in May can be further distinguished from the

circumstances of this case. As noted, in May the court applied

Wis. Stat. § 971.04 to communications between a court and a

deliberating jury regarding a pure question of law. In

contrast, the case at hand deals with three in-chambers

conferences each with an individual sitting juror to consider

the appropriateness of each such juror continuing his or her

jury service. The communications between the judge and the

deliberating jury in May regarding a pure question of law merely

7
 No. 2011AP394-CR.npc

required the judge to communicate a yes or no answer to the

jury. In contrast, the in-chambers conferences at issue today

relate to the composition of the jury, an issue of great

importance to any defendant. Communications between a judge and

juror(s) that could affect the jury's composition are distinct

from communications between a judge and a deliberating jury

relating to a pure question of law. These factual distinctions

further support the conclusion that the statutory limitation

presented in May should not extend to this case.

¶58 I agree with the State that the in-chambers

discussions with jurors at issue occurred "at trial" for

purposes of Wis. Stat. § 971.04. I would therefore hold that a

defendant has a clear statutory right under Section 971.04 to be

present at in-chambers discussions with jurors that occur during

the defendant's trial when those in-chambers conferences concern

the appropriateness of sitting jurors continuing their jury

service.

¶59 While Wis. Stat. § 971.04(1)(b) provides a defendant
with a statutory right to be present at trial, which encompasses

all of the in-chambers conferences at issue here, there is a

statutory exception to this right that is applicable to this

case. Under Wis. Stat. § 971.04(3) a defendant may voluntarily

absent himself or herself from trial, as long as he or she was

present at the start of the trial. Here, the record indicates

that Alexander did, in fact, voluntarily absent himself from all

three in-chambers conferences.

8
 No. 2011AP394-CR.npc

¶60 The record indicates that Alexander knew about each of

the in-chambers conferences that occurred with the two jurors.

In addition, there is no indication that Alexander objected to

being absent from any of the conferences. Defense counsel

represented Alexander in each of the conferences and during the

first in-chambers conference waived the defendant's presence

when asked by the circuit judge. A similar colloquy between the

circuit judge and Alexander's attorney does not appear on the

record in reference to either of the other in-chambers

conferences; however, there is no indication that Alexander

asserted his right to be present in the second or third

conference.

¶61 The record indicates that Alexander's attorney

conferred with him privately in reference to the in-chambers

conference with Juror 10. Additionally, the record reflects

that Alexander's attorney informed him of the information

discussed in the first and second in-chambers conferences.

Although the record does not disclose Alexander's conversations

about the third in-chambers conference with his attorney, there

is no indication that Alexander did anything other than

voluntarily absent himself from the third in-chambers

conference, just as he had for the prior two conferences.

Strong inferences to that effect can properly be drawn from the

facts of record.

¶62 Although I would hold that Alexander had a statutory

right to be present at the in-chambers conferences that took

place during his trial, I believe the record demonstrates that

9
 No. 2011AP394-CR.npc

Alexander waived his statutory right by voluntarily absenting

himself knowing that his counsel would be present.

II. ALEXANDER'S CONSTITUTIONAL RIGHT

¶63 As the majority opinion indicates, the Due Process

Clauses of the Fourteenth Amendment of the United States

Constitution and Article I, Section 8 of the Wisconsin

Constitution both provide a defendant with a right to be present

at trial. Majority op. ¶20. The United States Supreme Court

has characterized a defendant's due process right as a right to

be present at trial where "a fair and just hearing would be

thwarted by his absence." Snyder v. Massachusetts, 291 U.S. 97,

108 (1934), overruled on other grounds by Malloy v. Hogan, 378

U.S. 1 (1964). I write separately to emphasize that an in-

chambers conference that deals with the ability of sworn jurors

to continue to serve on the jury is an exceedingly important

occurrence in a criminal trial, and a defendant's absence from

it could frustrate his or her ability to have a fair and just

hearing. Therefore, I would hold that Alexander had a
constitutional due process right to be present at the in-

chambers conferences at issue but that he ultimately waived that

right.

¶64 Wisconsin case law recognizes that a defendant may

have a due process right to be present during an in-chambers

conference depending on what is discussed during the conference.

Ramer v. State, 40 Wis. 2d 79, 84-85, 161 N.W.2d 209 (1968). In

Ramer, this court held that a defendant's due process right to

be present at trial did not extend to proceedings that involved

10
 No. 2011AP394-CR.npc

questions of law because fairness would not be thwarted by a

defendant's absence at proceedings that involved pure questions

of law. See id. at 85; see also May, 97 Wis. 2d at 186

(providing that a fair and just trial occurred even though the

court answered a question of law from the jury in the

defendant's absence). In doing so, however, this court has also

stated "that conferences of the court and attorneys outside the

presence of the accused should be rarely held during the trial."

Ramer, 40 Wis. 2d at 85 (emphasis added).

¶65 Here, the in-chambers conferences did not deal with

any questions of law. Instead these conferences pertained to

the appropriateness of sitting jurors continuing to serve on the

jury. The conferences at issue are quite unlike the questions

of law that the court answered outside of the defendant's

presence in Ramer and May. I would, consistent with Anderson,

hold that a defendant has a constitutional due process right to

be at in-chambers conferences dealing with the continuing

service of sitting jury members that could ultimately affect the
composition of the jury. These types of conferences could

result in an unjust or unfair trial if held without the

defendant's presence, unless the defendant has waived his or her

constitutional right to be present.

¶66 In Anderson, 291 Wis. 2d 673, ¶37, this court also

addressed a defendant's constitutional right to be present at

his or her criminal trial. Specifically, we confronted the

issue of whether communication between the circuit court and a

deliberating jury, outside the presence of the defendant,

11
 No. 2011AP394-CR.npc

violated the defendant's constitutional right to be present at

his trial. Id. at ¶¶35-40. The communication between the

circuit judge and the deliberating jury involved numerous

questions from the jury regarding exhibits and the possibility

of having witness testimony read back to them. Id. at ¶10-19.

In Anderson, we held that both the defendant's constitutional

and statutory rights to be present at trial were violated when

the judge communicated with the deliberating jury outside of the

defendant's presence. Id. at ¶36. In reaching our decision on

the constitutional issue, this court relied on the

constitutional rights granted to a defendant through both the

Confrontation Clause and the Due Process Clause. Id. at ¶38

("An accused's constitutional right to be present derives from

the right to be heard and confront witnesses and from the

accused's right to due process.").7

¶67 The majority unnecessarily abandons well-reasoned

precedent set forth in Wisconsin case law to reach its

7
In doing so, we drew support from the United States
Supreme Court. State v. Anderson, 291 Wis. 2d 673, ¶38 n.13,
¶39 (citing United States v. Gagnon, 470 U.S. 522, 526 (1985)
(“The constitutional right to presence is rooted to a large
extent in the Confrontation Clause of the Sixth Amendment, but
we have recognized that this right is protected by the Due
Process Clause in some situations where the defendant is not
actually confronting witnesses or evidence against him.”)
(citations omitted); Illinois v. Allen, 397 U.S. 337, 338
(1970)(“One of the most basic of the rights guaranteed by the
Confrontation Clause is the accused’s right to be present in the
courtroom at every stage of his trial.”). We also relied upon
the United States Constitution, as well as the Wisconsin
Constitution. Id. at ¶38 (“The constitutional right to be heard
and confront witnesses appears in the Sixth and Fourteenth
Amendments to the United States Constitution and Article I,
Section 7 of the Wisconsin Constitution.” (footnotes omitted)).

12
 No. 2011AP394-CR.npc

conclusion today. Specifically, the majority casts aside

longstanding precedent from Anderson and concludes that State v.

Burton, 112 Wis. 2d 560, 334 N.W.2d 263 (1983), a case that

Anderson relied upon, must be overruled.8 Its conclusion that

Burton and parts of Anderson must be overruled to decide the

case at issue is misguided and unnecessary to the court's

holding.

¶68 Neither Anderson nor Burton need be overturned to

reach a decision in this case. Both cases, in fact, are

factually distinct from the issue we have been asked to decide.

Both Anderson and Burton dealt with questions surrounding a

defendant's right to be present when a judge communicates with a

deliberating jury. In contrast, this case deals with a

8
The majority’s conclusion that State v. Burton must be
overruled is based on a supposed conflict between Burton and
May, that the majority cites, but does not explain. Considering
the factual differences between these two cases, no conflict
actually exists. In Burton, our holding that constitutional
error occurred when the circuit judge communicated with a
deliberating jury stems from our concern with the judge in that
case repeatedly entering the jury room outside the presence of
the defendant or defendant’s counsel. A judge’s presence in the
jury room outside the defendant’s presence could easily cause
unfairness that would result in a violation of the defendant’s
due process rights.

In contrast, in May v. State, 97 Wis. 2d 175 (1980), while
recognizing that an accused has the right under the Wisconsin
Constitution and the United States Constitution to be present
during her or her trial, we held that there was no reversible
error when the judge communicated an answer to a question of law
to a deliberating jury outside of the defendant’s presence. In
May, the judge simply communicated a yes or no answer to the
jury by note and did not enter the jury room or communicate
anything other than an answer to a question of law. Considering
these factual distinctions, it is easy to see how this court
found a constitutional violation in Burton, but not one in May.

13
 No. 2011AP394-CR.npc

factually distinct situation involving communications between a

court and sitting jury members concerning the appropriateness of

allowing each one to continue to serve as a member of the jury.

Due to this factual distinction, there is absolutely no need to

overrule Burton, and certainty we do not have to overrule or

withdraw portions of Anderson9 to decide the case at hand. We

should refrain from unnecessarily overturning well-established

and well-reasoned precedent.

¶69 Finally, the majority is persuaded by United States v.

Provenzano, 620 F.2d 985, 997-98 (3d Cir. 1980), which found

that "there is no constitutional right for a defendant to be

present at a conference in chambers concerning dismissal of a

juror." (emphasis omitted). Such an approach has not been

followed by other federal circuit courts.

¶70 I emphasize that the approach taken by several other

courts——one that allows for the possibility that a defendant's

absence from communications between a judge and juror or jury

could result in a constitutional violation if "a fair and just
hearing would be thwarted by [the defendant's] absence"——is the

better-reasoned case law. See Verdin v. O'Leary, 972 F.2d 1467,

1482 (7th Cir. 1992) ("[I]f Mr. Verdin had a constitutional

right to be present at the exchange [between the judge and the

jury], it stemmed from his due process right to be present

9
It should be noted that Anderson and May also do not
conflict with one another. While Anderson dealt with
communication between a judge and a deliberating jury regarding
trial exhibits and testimony, May addressed a judge’s
communication with a deliberating jury when that communication
related to a pure question of law.

14
 No. 2011AP394-CR.npc

' . . . to the extent that a fair and just hearing would be

thwarted by his absence.'"); Ross v. Dist. Attorney of the Cnty.

of Allegheny, 672 F.3d 198, 212-13 (3d Cir. 2012) (considering

whether a defendant's absence from a conference between trial

judge, counsel, and juror resulted in unfairness to the

defendant); United States v. Fernandez-Hernandez, 652 F.3d 56,

66 (1st Cir. 2011) cert. denied, 132 S. Ct. 353, (2011)

(discussing factors relating to whether the defendant's absence

from a bench conference with the judge, counsel, and jurors

deprived him of his due process right to be present during

trial); Moore v. Knight, 368 F.3d 936, 940-44 (7th Cir. 2004)

(evaluating various case-specific circumstances to determine

whether the defendant's trial was fundamentally unfair due to

communications between the court and jury that occurred outside

of the defendant's presence); United States v. Peterson, 385

F.3d 127, 138 (2d Cir. 2004) (reviewing whether a judge's

private in-chambers conference with a juror violated the

defendant's due process right to be present by considering the
effect of that conference on the defendant's opportunity for a

fair trial); United States v. Santiago, 977 F.2d 517, 522 (10th

Cir. 1992) (discussing the circumstances surrounding the trial

judge's ex parte questioning of a juror and the effect that

questioning would have on the defendant's constitutional

rights); United States v. Caldwell, 776 F.2d 989, 997 (11th

Cir. 1985) (considering the brevity of communications between a

juror and circuit judge, as well as other case-specific facts,

to determine if the defendant's constitutional due process

15
 No. 2011AP394-CR.npc

rights had been violated); Nevels v. Parratt, 596 F.2d 344, 346

(8th Cir. 1979) (holding that defendant's absence from a hearing

with a juror about possible juror misconduct violated the

defendant's constitutional right to be present at all stages of

his trial). This more nuanced approach allows for a due process

analysis based on the individualized circumstances of each case

and better conforms with our statement "that conferences of the

court and attorneys outside the presence of the accused should

be rarely held during the trial," Ramer, 40 Wis. 2d at 85, than

does the majority's categorical approach.

¶71 Applying this approach, I would hold that due process

gave Alexander the right to be present at the in-chambers

conferences dealing with whether the jurors should continue to

serve on the jury. Alexander's presence at these conferences

was critical to the fairness of the proceedings. The importance

of a defendant's presence at proceedings involving the selection

of jurors and the continued service of jurors, which ultimately

may affect the composition of the jury cannot be overstated.
See Boone v. United States, 483 A.2d 1135, 1137-38 (D.C. 1984)

(discussing the importance of the defendant's presence at voir

dire); Welch v. Holman, 246 F. Supp. 971, 973-74 (M.D. Ala.

1965), aff'd 363 F.2d 36 (5th Cir. 1966) (discussing a

defendant's right to be present during proceedings that involve

juror qualifications).

¶72 Although I would hold that Alexander had a

constitutional due process right to be present at the in-

chambers conferences at issue, I have noted previously in this

16
 No. 2011AP394-CR.npc

opinion that a defendant may waive that right. State v. Biller,

262 Wis. 472, 479, 55 N.W.2d 414 (1952). I am satisfied on this

record that Alexander did in fact waive his due process right,

along with his statutory right to be present during the in-

chambers conferences as evidenced by the record in this case.

III. CONCLUSION

¶73 Alexander had both a statutory and a constitutional

right to be present at each of the in-chambers conferences that

occurred with sitting jurors during his trial for the purpose of

determining the composition of the jury. His rights were waived

for him by his counsel and by his own actions in voluntarily

absenting himself. The Wisconsin legislature gave him the

statutory right to be present "at trial," and the in-chambers

conferences in question clearly occurred "at trial."

Additionally, Alexander had a constitutional right of due

process to be present at the in-chambers conferences because the

circumstances of this case put it into the category of cases

where "a fair and just hearing would be thwarted by his

absence."10

¶74 For the reasons stated, I respectfully concur.

¶75 I am authorized to state that Chief Justice SHIRLEY S.

ABRAHAMSON and Justice ANN WALSH BRADLEY join this opinion.

10
Snyder v. Massachusetts, 291 U.S. at 108.

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 No. 2011AP394-CR.akz

¶76 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join

the majority opinion because, under the facts of this case,

neither Alexander's constitutional right to due process nor his

statutory right to be present at voir dire under Wis. Stat.

§ 971.04(1)(c) were violated.1 I write separately to point out

that even if we were to conclude that a constitutional or

statutory protection was violated, the error in not having

Alexander present, under these facts, is harmless.2 Alexander is

entitled to a fair trial and impartial jury, which he received.

¶77 "Judges face tough calls in the courtroom each day.

Judges are charged with administering justice and have a

concurrent goal of avoiding unnecessary appellate issues."

State v. Tody, 2009 WI 31, ¶60, 316 Wis. 2d 689, 764 N.W.2d 737

(Ziegler, J., concurring). Here, to the extent that any issue

arose as to the two jurors who were dismissed as alternates, the

judge was properly attempting to avoid unnecessary appellate

issues.

¶78 Alexander was involved in the selection of 14 jurors.

He knew that any 12 of those 14 jurors would ultimately sit as
the final jury in this case. Alexander had no particular right

to have these two jurors remain on his jury. If anything,

1
Alexander did not argue that his right to be present at
trial under Wis. Stat. § 971.04 was violated.
2
I believe that judges around this state strive to include,
not exclude, defendants and counsel when issues arise during the
course of trial. This case illustrates why it is a good
practice to include defendants and counsel, if possible, when
matters arise during trial.

1
 No. 2011AP394-CR.akz

leaving these two alternates on the jury and dispensing with two

other jurors would likely have created more issues than it

resolved. Twelve jurors, not fourteen, reach a verdict based

upon the evidence and the law. The trial court judge was

correct to select these two jurors as the alternates. Alexander

received the fair and impartial jury to which he was entitled.

¶79 For the foregoing reasons, I respectfully concur.

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1